Matter of DeMaio

[*1] Matter of DeMaio 2014 NY Slip Op 50691(U) Decided on April 21, 2014 Sur Ct, Queens County Kelly, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 21, 2014
Sur Ct, Queens County

In the Matter of the Probate of the Last Will and Testament of Frank DeMaio, a/k/a FRANK S. DEMAIO, Deceased.



2012-1485/B



The attorneys on this matter were:

Martin A. Pollack, Esq.

Attorney for Petitioner

Anthony A. Cannatella, Esq.

Attorney for Objectants

Peter J. Kelly, J.

Petitioner Sophia Liapis moves for summary judgment dismissing the objections filed by Pamela Wonder and Laura Geoghegan, the decedent's two daughters and sole distributees, and granting probate of an instrument dated July 21, 2010. The subject instrument nominates the decedent's two daughters and decedent's attorney, Steven L. Topal, Esq., as co-executors, makes a specific bequest to petitioner, and names decedent's two daughters as residuary beneficiares. Petitioner brought this proceeding after the decedent's daughters petitioned for the probate of an earlier instrument which, inter alia, did not include a bequest to petitioner.

The objections allege as follows: 1. The purported Last Will and Testament dated July 21, 2010, was not properly and/or validly executed by the decedent.2. The decedent lacked the testamentary capacity to execute the purported Last Will and Testament dated July 21, 2010, inasmuch as decedent, among other things, did not fully understand the nature and extent of his estate.3. The decedent did not read or write the English language (the language the document was written in) and the purported document was never read to decedent by the attorney draftsman/supervising attorney or anyone else at the time of the execution on July 21, 2010.[*2]4.The decedent had a significant defect in sight at the time of the execution of the purported Last Will and Testament and could not read the paper in any respect at the time of its execution; and the purported Last Will and Testament was never read to the decedent by the attorney draftsman/supervising attorney or anyone else at the time of its execution on July 21, 2010.5. Individuals surrounding the decedent at or about the time of the execution of the purported Last Will and Testament of the decedent exercised undue influence on the decedent compelling the decedent to execute the document that did not properly reflect his wishes and desires.

Summary judgment may be granted only where it is clear that no triable issue of material fact exists (see Alvarex v Prospect Hosp., 68 NY2d 320; Phillips v Kantor & Co., 31 NY2d 307). Although summary judgment must be exercised cautiously, it is proper in a contested probate proceeding where the proponent submits a prima facie case for probate and the objectant fails to raise any genuine factual issues (Matter of Minervini, 297 AD2d 423; Matter of Coniglio, 242 AD2d 901). Indeed, it is also clear that summary judgment may be granted even where such proceedings involve issues of a fact-sensitive nature, such as fraud and undue influence (see Matter of Neuman, 14 AD3d 567; Matter of Goldberg, 180 AD2d 528).

To defeat a motion for summary judgment, the opponent must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact (Stainless, Inc. v. Employers Fire Ins. Co., 69 AD2d 27, aff'd 49 NY2d 924).

Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice (Iselin & Co. v. Mann Judd Landau, 71 NY2d 420; Matter of Ohara, 85 AD2d 669). The papers submitted in support of and in opposition to the motion are scrutinized in a light most favorable to the party opposing the motion. If there is any doubt as to the existence of a triable issue of fact, then the motion must be denied (Robinson v. Strong Memorial Hosp., 98 AD2d 976).

It is incumbent upon the movant to make a prima facie showing that he or she is entitled to summary judgment as a matter of law (Zuckerman v. City of New York, 49 NY2d 557; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065; Matter of Coniglio, supra; Matter of Parravani, 211 AD2d 965; CPLR 3212 [b]).

The petitioner has the burden of proving that the propounded instrument was duly executed in conformity with the statutory requirements (see EPTL § 3-2.1[a]; Matter of Collins, 60 NY2d 466; Matter of Rosen, 291 AD2d 562), and that the testator possessed testamentary capacity (see Matter of Kumstar, 66 NY2d 691; Matter of Hinman, 242 AD2d 900).

Where the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, there is a presumption that all the [*3]provisions of the statute were complied with, even where the witnesses are unable to recollect the execution or what took place at the time (Matter of Collins, supra; Matter of Kellum, 52 NY 517). Additionally, as the execution ceremony was supervised by an attorney, there is a presumption of due execution (see Matter of Tuccio, 38 AD3d 791).

In support of the petitioner's motion for summary judgment, petitioner annexed a copy of the instrument offered for probate which contains an attestation clause indicating that, on July 21, 2010, the instrument was "...signed, published and declared by Frank DeMaio to be his Last Will and Testament..." in the presence of the witnesses, and that the witnesses, in his presence and in the presence of each other, subscribed their names as witnesses.

Additionally attached to the instrument offered for probate is an Affidavit of Attesting Witnesses which provided, inter alia, that the testator declared the instrument to be his Last Will and Testament; that the witnesses signed their names at the end of the instrument at the testator's request, in his presence and in the presence of each other; that at the time of the execution the witnesses opined that the testator was over 18 years of age, of sound mind, memory and understanding, under no constraint, duress, fraud or undue influence, and in no respect incompetent to make a valid will; that the testator was able to read, write and converse in the English language, and was not suffering from any defect of sight, hearing, speech or other physical or mental impairment that would affect his capacity to make a valid will; and that the instrument was executed by the testator as a single, original document with no counterparts and under the supervision of an attorney admitted to practice in the State of New York.

Based upon the self-executing affidavit accompanying the will signed by the two attesting witnesses, which creates a presumption of due execution (see Matter of Paigo, 53 AD3d 836), the fact that the execution ceremony was supervised by an attorney which also creates a presumption of due execution, and based upon the SCPA §1404 testimony of the two attesting witnesses and the supervising attorney, petitioner has made a prima facie showing that the will was validly executed and that the decedent possessed the requisite capacity to execute the instrument.

Upon this prima facie showing of the will's validity, it is incumbent upon the objectants to produce evidentiary proof in admissible form to raise a material issue of fact (Matter of Seelig, 302 AD2d 721).

In opposition to the motion, the objectants have submitted their own affidavits, an affidavit with exhibits from their attorney, Anthony S. Cannatella, Esq., and a Memorandum of Law.

On the issue of due execution, objectants contend that there is "...no record of the supervising attorney ever reading the attestation clause to the decedent during the will signing." An attestation clause, however, is a formal, nonmaterial and nondispositive provision which is not necessary to the validity of a will. It is not part of the will and is not required as part of its execution by any law (Matter of Tooker, 21 AD2d 928; see EPTL §3-2.1). The attestation clause is intended to be read by the attesting witnesses and is placed after the testator's signature but before the signatures of the witnesses. Consequently, there is no necessity that the supervising attorney read the attestation clause to the decedent and the failure to do so would have no bearing on whether or not the instrument was validly executed in accordance with the [*4]statute.

In a similar vein, Objections 3 and 4 are based upon claims that the testator did not read or write the English language and had a significant defect in sight at the time of the execution of the purported Last Will and Testament. It is further alleged that the decedent could not read the document in any respect at the time of its execution and that the purported document was never read to decedent by the attorney draftsman/supervising attorney or anyone else at the time of the execution on July 21, 2010.

In support of her motion, petitioner has submitted the self-proving affidavit which, together with the SCPA §1404 testimony, provide that the testator "...was able to read, write and converse in the English language, and was not suffering from defects of sight, hearing or speech, or any other physical or mental impairment which would affect his capacity to make a valid will." Interestingly, the objectants have filed affidavits with the Court from the attesting witnesses of the decedent's earlier will dated April 6, 1998 which also state that "the decedent could read, write and converse in the English language, and was not suffering from defects of sight, hearing or speech..." in express contravention of their current position.

In any event, accepting that the testator had absolutely no ability to read in the English language and/or had impaired sight, there is no necessity under the law that the instrument be read to the testator in front of the attesting witnesses. However, where an issue exists as to decedent's ability to read the instrument offered for probate, petitioner must demonstrate more than just the factum of the will. There must be additional evidence and satisfactory proof of some kind to the effect that this testator knew and approved of the contents of the will which was executed as his own. Such a will may be read to the testator before signing apart from the attesting witnesses, or it may be shown that the contents were correctly made known to him without any formal reading at all, provided it appear, on the whole, that the instrument as drawn up and executed constituted his own testamentary disposition as intended by him (Matter of Regan, 206 AD 403; see also In re Estate of Long, 176 AD2d 1059; Matter of Rinaudo, 35 Misc 3d 1213[a]).

In the instant matter, the supervising attorney testified that he "went over very carefully" the dispositive provisions in the instrument with the decedent. He also testified that the testator made two corrections to the drafted instrument: changing "$1.5 million" to "approaching $2 million" in Article 1 (B) and correcting the spelling of petitioner's last name in Article 3 (A). There is no dispute that decedent could speak and understand English, despite any alleged inability to read same. It is also uncontroverted that decedent ran a successful business, acquiring and operating several commercial properties up to the time of his death. While the affidavits of the objectants attest to decedent's inability to read English or see the contents of the instrument, there has been absolutely no proof submitted by the objectants that could establish the instrument, as executed, did not accurately reflect his testamentary wishes as expressed to the supervising attorney in all three of his visits, or to refute the testimony of the supervising attorney that he reviewed the provisions of the instrument with the decedent several times prior to its execution.

Since the objectants have not produced sufficient evidence to raise an issue of [*5]fact with regard to the issue of due execution, the branches of petitioner's motion seeking summary judgment striking and dismissing objectants' first, third and fourth objections to probate are granted.

With respect to the second branch of the motion seeking to dismiss the objection based upon lack of testamentary capacity, a proponent bears the burden of proving, by a preponderance of evidence, that at the time of execution, decedent understood three things in a general way: (i) the nature and extent of his or her property; (ii) the natural objects of his or her bounty; and (iii) the provisions of the instrument(Matter of Kumstar, supra). The capacity to execute a valid will is minimal; lower than that required to execute most other legal documents or contracts (Matter of Coddington, 281 AD 143, aff'd 307 NY 181).

The question of testamentary capacity concerns a person's mental condition at the time of the execution of the will; evidence relating to the condition of the testator before or after the execution is only significant insofar as it bears upon the strength or weakness of the testator's mind at the exact hour of the day of execution (Matter of Hedges, 100 AD2d 586). A testator needs only a lucid interval of capacity to execute a valid will, and this interval can occur contemporaneously with an ongoing diagnosis of mental illness, including depression (Matter of Esberg, 215 AD2d 655), progressive dementia, or even incompetency (see Matter of Walther, 6 NY2d 49; Matter of Friedman, 26 AD3d 723). Also, it has long been recognized that physical weakness is not necessarily inconsistent with testamentary capacity (Children's Aid Society of New York v Loveridge, 70 NY 387; Matter of Swain, 125 AD2d 574).

The evidence herein establishes that the supervising attorney met with the decedent three times in the preparation and execution of the instrument offered for probate. The attorney testified that the first meeting consisted of a rough overview of the decedent's assets and his intention to "...give some money to a friend of his...He was talking in the range of a million dollars" and that he "...owned a house, a country house, and other buildings" and that he had "...a lot of money." The attorney further testified that he told the decedent that this was "a lot of money" and asked him if he was "disowning" his daughters. The attorney testified that he responded "No." "(he said) that he owns five or six properties and they were going to get all the properties... I said...if you got more than a million...in the bank and securities, and he indicated that he did...he indicated that it was a fair amount of additional money. I came away with the impression that it might be a million five in terms of securities and cash, but maybe not much higher than that...So I said well if we do this new will, who is going to get all the properties? He said...that's going to go to my daughters. And I said okay. So at least you're not disowning them and he said-no, no....so I said...before I can...make a will and be comfortable that you know we're doing the right thing, I've got to have a better idea of what your assets are."

Consequently, a second meeting was arranged at which time the decedent brought documentation from Merrill Lynch indicating that he indeed had sufficient assets to bequest at least a million dollars worth to his friend without disinheriting his [*6]daughters.

After the second meeting with the decedent, the attorney drafted a will indicating therein that the decedent has personal funds maintained primarily in an account at Merrill Lynch with a total value of $1,500,000.00. The attorney testified that at the third and final meeting, the decedent indicated that the $1.5 Million amount was now approaching $2 Million. Based on this information, the signed instrument contains the following provisions: Article 1: Assets(A) My principal assets are buildings that I own, the house where I reside, and a country house. None are subject to a mortgage.(B) At the time I am executing this document, my personal funds are maintained primarily in an account at Merrill Lynch, with a total value approaching $2 million.

***

Article 3: Bequests (A) I give shares I hold in Sysco Food Service Corporation up to a value of $1 million, based on their value at the date of my death, to my friend SOPHIA LIAPIS if she survives me.(B) I direct that all of my remaining interests in real and personal property be divided equally between my daughters, PAMELA WONDER and LAURA GEOGHEGAN, or to their descendants, per stirpes if they have not survived me.

Initially the Court notes that no medical evidence has been submitted suggesting that the decedent's mental faculties were impaired at the time the instrument was executed.

What the objectants do contend is that there is a triable material issue of fact on whether the decedent knew the nature and extent of his property being disposed under the instrument offered for probate. Objectants point out that the decedent did not tell the attorney that he only owned a 50% interest in his residence and country house, as the decedent had previously signed a renunciation of 50% of those properties after his wife's death. Decedent's renunciation was in favor of his two daughters who became 50% owners - with decedent - of these properties.

The law requires a testator to only have a general, rather than a precise, knowledge of his assets (see Matter of Walker, 80 AD3d 865). As amply demonstrated by petitioner, the decedent knew he had ownership interests in the subject real properties. The mere fact that he did not state the exact percentage of his ownership of his residence and country home is not fatal. Decedent's statements regarding his ownership of real property and the valuation of his assets, coupled with the testimony that decedent knew he could leave a sizeable bequest and still have a significant residuary in an estate that appears to be in excess of five million dollars, establishes, prima facie, that the decedent knew the full extent of his assets at the time of the [*7]execution of the instrument. Objectants, in opposition, have not produced evidence sufficient to raise an issue of fact in this regard (Matter of Walker, supra; Matter of Khazaneh, 15 Misc 3d 515).

Accordingly, the branch of the motion for summary judgment dismissing the second objection as to lack of testamentary capacity is granted.

The fifth and final objection to the Will alleges that "individuals surrounding the decedent at or about the time of the execution of the purported Last Will and Testament of the decedent exercised undue influence on the decedent compelling the decedent to execute the document that did not properly reflect his wishes and desires."

Once again, the petitioner has submitted proof in the form of the self-proving affidavit attached to the instrument offered for probate indicating that the testator was "...under no constraint, duress, fraud or undue influence." This is consistent with the SCPA §1404 testimony of the attesting witnesses and the attorney draftsman and establishes a prima facie entitlement to the relief requested.

In order to establish a prima facie case of undue influence and thereby raise an issue of fact on this issue, the objectants must show: (1) the existence and exertion of an influence; (2) the effective operation of such influence as to subvert the mind of the testator at the time of the execution of the will; and (3) the execution of a will, that, but for undue influence, would not have been executed (Matter of Walther, supra). Undue influence can be shown by all the facts and circumstances surrounding the testator, the nature of his will, his family relations, the condition of his health and mind and a variety of other factors such as the opportunity to exercise such influence (see generally 2 PJI3d 7:55). To defeat a motion for summary judgment, the objectants must illustrate that there is a genuine triable issue by providing specific, detailed allegations which are substantiated by evidence in the record and are not mere conclusory assertions (Matter of O'Hara, supra).

Undue influence is seldom practiced openly, but it is the product of persistent and subtle suggestion imposed upon a weaker mind and furthered by the exploitation of a relationship of trust and confidence (Matter of Burke, 82 AD2d 260). Without the showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed is insufficient (see Matter of Chiurazzi, 296 AD2d 406; Matter of Herman, 289 AD2d 239).

In opposition to this branch of the motion, the objectants set forth four circumstances that they contend establish a prima facie showing of undue influence: (1) the instrument offered for probate contains a bequest to the petitioner; (2) the petitioner attended the second of the three meetings the testator had with the attorney draftsman; (3) the petitioner provided the testator with a note containing the correct spelling of her last name so he could bring it to the third and final meeting with the attorney draftsman; and (4) there was a romantic relationship between the petitioner and the testator.

Objectants' claim that the petitioner attended the testator's second meeting with the attorney draftsman is disingenuous at best. It is noted that the objectants only attached a portion of the SCPA §1404 examination of the attorney draftsman to their papers, wherein the attorney draftsman testified that he "believed" that the woman in [*8]attendance was the petitioner. However, a review of the complete transcript in the Court file indicates that the parties then went off the record. According to petitioner's attorney the attorney draftsman recanted his statement. While no testimony exists establishing that fact, the record is clear, though, that when the parties were back on the record the line of questioning turned to the appearance of the woman at the second meeting. The attorney draftsman testified that the woman at the second meeting was "fairly tall" and he took her to be "fifty or sixty or sixty-five" with hair that was "brown streaked with gold kind of thing." That description does not match the petitioner and the objectants omitted this complete line of questioning from their opposition papers to the motion.

Secondly, the petitioner vehemently denied ever meeting the attorney draftsman during the testator's lifetime. Also, the fact that the petitioner's last name was misspelled in the will drafted after this meeting belies the allegation that it was petitioner was present when information was conveyed to the attorney draftsman.

Most legally significant, the unrefuted evidence in the record is that the attorney draftsman asked the woman who accompanied decedent to the second meeting to step out and that she was not present during the discussion concerning the provisions of the will. So, accepting, as the Court must, the objectants' position that the petitioner brought the decedent to the attorney's office on this occasion as true, that fact standing alone is insufficient to establish actions that could satisfy the definition of undue influence (Matter of Zirinsky, 43 AD3d 946).

The fact that the testator brought a note to the third meeting with the correct spelling of petitioner's last name is of little or no value on the issue of whether or not petitioner exerted undue influence upon the testator since there is absolutely no proof in the record regarding who the author of the note was. Likewise, the objectants' claim that the petitioner had a romantic relationship with the testator does not raise an issue of fact on the issue of undue influence, since, if true, it actually offers an explanation as to why the testator would leave petitioner a bequest in his will.

Other than a supposition that the petitioner accompanied decedent to the second meeting with counsel, the record is devoid of any direct evidence that the proponent interfered with the making of the will. As in Matter of Walther, supra, the uncontradicted evidence establishes that Sophia Liapis did not draft the document; she did not dictate it; she was not present when its proposed contents were discussed; she did not retain counsel to draft the instrument; and she was not present when the will was executed. Whether or not a romantic relationship existed between the decedent and the petitioner, it is clear that they knew each other for many years and she had assisted him in various chores.

It is also clear that the attorney draftsman carefully reviewed with the testator the tax apportionment clause which provides that all estate taxes be apportioned among the beneficiaries on a pro rata basis as opposed to the general practice of being paid out of the residuary estate, a clause which benefits the objectants at the expense of the petitioner.

Evidence of opportunity and motive are insufficient to raise a triable issue of whether a will was coerced (Matter of Zirinsky, supra). So, too, the mere fact that one is a legatee is not in itself evidence of the exercise of undue influence (see Matter of [*9]Walther, supra).

As the objectants have failed to submit any evidence, beyond conclusory allegations and speculation, that Sophia Liapis actually exercised undue influence over the decedent, the branch of the motion to dismiss the objection as to undue influence is granted (see Matter of Eastman, 63 AD3d 738).

All objections having been dismissed, summary judgment is granted to the petitioner.

The Will dated July 21, 2010 is admitted to probate.

Upon the renunciation of Steven L. Topal, Esq., letters testamentary shall issue to Pamela Wonder and Laura Geoghegan upon due qualification.

If neither Pamela Wonder nor Laura Geoghegan qualify within thirty days of the decree to be settled herein, then letters of administration c.t.a. shall issue to Sophia Liapis upon due qualification.

Settle decree.

Dated: April 21, 2014___________________________

SURROGATE